Pennsylvania Supreme Court holds GPS Data is not Hearsay

In Pennsylvania v. Wallace, the Supreme Court of Pennsylvania held that GPS data collected from the ankle monitor of a parolee does not constitute hearsay under Rule 801 of the Pennsylvania Rules of Evidence and is therefore not excluded by that Rule.[1] In so doing it joined the majority in the split among state courts that have decided the question to date.[2] The court’s decision turned on its determination that computer-generated data cannot constitute a “statement” within the meaning of the hearsay rule, because it is not an assertion made by a person.[3]

Appellant Jamal Wallace was convicted, along with accomplice Mason Clary, of various offenses related to the non-fatal shooting of an acquaintance on the streets of Norristown, Pennsylvania.[4] To prove the location of the two men at the time in question, the prosecution introduced GPS data from Clary’s ankle monitoring device, which had been maintained by the Attenti Group, the private contractor that administered the monitor for the Commonwealth’s parole board.[5] The trial court admitted the data under Pennsylvania’s business records exception to the hearsay rule, finding that, consistent with Rule 803(6), the government “had established, through a proper custodian, that the records, automatically generated and stored electronically without any human intervention, were not created and maintained for the purposes of litigation” but were “preserved for purposes of supervision and . . . sanctions for those found in violation of their parole conditions.”[6] The trial court further found that, even if the data had not qualified as a business record, it was nonetheless admissible because it was not hearsay at all, insofar as it was “computer generated and d[id] not constitute an assertion made by a person.”[7] The Superior Court affirmed on these second, broader grounds.[8]

Before the Supreme Court of Pennsylvania, the Appellant argued that, in holding GPS data not to constitute hearsay at all, the lower courts had pursued a theory not even raised by the government and thus usurped the supreme court’s role in the rule-making process.[9] While acknowledging that the question was one of first impression in Pennsylvania, Wallace cited other Pennsylvania court decisions which, in dicta, had presumed computer-generated data to constitute a “statement” for hearsay purposes.[10] Wallace also relied heavily on the Florida case Channell v. State, which held that GPS data from an electronic monitoring bracelet was hearsay because it was being offered for the truth of the matter asserted, i.e., that the offender was in a particular place.[11] He further argued that, not only did the GPS data constitute hearsay, but it did not fall into the business records exception because it failed to meet two of the requirements of Rule 803(6): it was both unreliable and prepared in anticipation of litigation.[12] As to reliability, the Appellant pointed out that the Attendi employee testifying as custodian of the records for Rule 803(6) purposes did not personally understand anything about how the GPS system worked.[13] The Appellant further argued that GPS monitoring of parolees inherently anticipates litigation, as it is part of a court-ordered process and the records produced from a bracelet are used to prove that a violation has occurred.[14]

The Commonwealth argued that the lower courts were correct in holding computer-generated data such as GPS records not to constitute hearsay at all, citing cases from a number of other federal circuits and states which had come to the same conclusion due to the lack of a human being making an assertion.[15] It adopted the Superior Court’s reasoning for distinguishing the Florida case, which turned on the difference between the two states’ statutory definitions of “statement” for hearsay purposes. Where the Florida hearsay statute defines a statement as “an oral or written assertion,” the Pennsylvania statute defines it as a “written or oral assertion of a person.”[16] Finally, the Commonwealth argued that reliability concerns regarding computer-generated records were not relevant to whether a statement constitutes hearsay, but to the question of authentication, properly litigated under Pennsylvania Rule of Evidence 901.[17]

Ultimately, the Supreme Court of Pennsylvania affirmed the court below, on the grounds that the language of Rule 801 is clear that “a statement is a written or oral assertion of a person.”[18] It reasoned that the GPS location data was not made by a person but collected electronically by the monitoring device and therefore, by definition, could not constitute hearsay.[19] In addition to citing the other jurisdictions that had reached the same conclusion, the court observed that the Appellant’s best precedent, the Florida cases, seemed to contain a “logical lapse.”[20] It noted that, despite the efforts of the Superior Court and the government to distinguish it, Florida hearsay law, too, appears to contain a person requirement elsewhere in the statute, which the Florida courts simply failed to address.[21] The court concluded by harmonizing its holding with the purpose of the rule against hearsay which, it asserted, is to allow a defendant to cross-examine a declarant to test his truthfulness or challenge his statements.[22] Because “a machine cannot be cross-examined,” the court reasoned, the best way to advance the truth-seeking process with respect to computer-generated statements is through the authentication processes of Rule 901.

Justice David Wecht wrote a concurring opinion, joining in the judgment on the grounds that the GPS data was admissible as a business record.[23] He argued that the majority opinion made too broad a shift in Pennsylvania evidence law, failing properly to distinguish between computer-stored data and computer-generated data.[24] He noted that computers do not make statements “in a vacuum” and that many so-called “computer-generated statements” may involve human input.[25] As a result, he concluded, the Rule 901 authentication process is an insufficient guard against unreliability in these cases, and the majority went too far.[26] Nonetheless, he concluded that the GPS data constituted a business record due to the fact that it was not maintained for the purposes of litigation, but for the “tracking and sanction” of parolees.[27]

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